Subrogation: Twenty Five Confusing Years of the “Rimes Rule”
Twenty five years have passed since adoption of the so-called “Rimes Rule” in the case of Rimes v. State Farm.[i] The rule seemed fair enough back then, that subrogation is to be allowed only when the insured is compensated in full by their recovery. The injured person is to be made whole, but no more than whole before subrogation applies.[ii] Rimes involved a personal injury settlement, but these propositions were actually made five years earlier in the Garrity case, involving a fire loss.[iii] The subrogation decisions since Rimes have been sometimes confusing and conflicting. We will review the principle cases of the past twenty five years, and offer some thoughts as to what the future might bring.
Garrity and Rimes
Rimes established a procedure for a “wholeness hearing” or “mini-trial” where “wholeness” would be determined. Sometimes overlooked now, is that the Rimes Court looked to the holding of Lewandowski v. Continental Casualty Co., when adopting the wholeness hearing procedure.[iv] Lewandowski was a malpractice case involving a limitations-barred negligence action. The Lewandowski Court held that a trial was appropriate to determine the value of the plaintiff's loss of his right to bring suit. The measure of damages was the sum that might have been recovered had the suit been timely brought. The case was tried to a jury, and a verdict was submitted with the usual questions on negligence, causation, and damages. The question in Lewandowski was the value of the claim had it been timely brought to trial. The question in Rimes was what sum the finder of fact would have found sufficient to make the plaintiffs whole had the cause of action gone to trial, rather than being terminated by settlement.
Seeds of confusion were sown when the Rimes Court then went on to gratuitously offer that, regardless of negligence, the damage question was to be afforded primacy.[v] The court did not say that negligence was not to be calculated, and in fact had approved the use of the Lewandowski formula for that purpose. The Court did not say that an injured person was entitled to receive more in settlement than they would have been legally entitled to receive by way of a jury verdict. What they meant by saying that the damage question was to be afforded primacy, despite having approved the Lewandowski formula in calculating damages, was not clearly explained. It is also perhaps the root cause of divergent conclusions drawn from Rimes, evident in later debate among judges and lawyers. At least to this writer, what was meant is clear when the Rimes Court’s conclusions are read, not in isolation, but rather, in the context of the entire case. “Bottom line” damages, as determined under the Lewandowski formula, are to be afforded primacy; that is, those damages that may have been brought to judgment after application of the legal discount for comparative negligence.
Blue Cross v. Firemen’s Fund
Four years after Rimes, in Blue Cross v. Firemen’s Fund, the Court of Appeals held that a health insurer need not allege that their insured was “made whole” in a settlement, prior to commencing a separate lawsuit against the adverse liability insurer.[vi] Firemen’s Fund had separately settled with the Blue Cross insured for less than its policy limits. Blue Cross sought satisfaction of its claims from the remaining Firemen’s Fund policy limits. The Court observed that the compelling equitable factor which defeated the subrogation rights asserted in Rimes/Garrity was the prospect of an insurer seeking funds from its own insured, who had not been made whole. Blue Cross did not assert any claim against its own insured or against the prior settlement proceeds, so the “competing claims” factor was not present in the case. The Court ignored the terms of an indemnification release previously entered between Firemens Fund and the insured. That release purported to cut off any claims for subrogation, by way of an indemnification agreement between the insured and Firemens Fund. The Blue Cross insured was not a party to the subrogation action, so no question was presented as to remedies available relating to the indemnification release.[vii] Neither was mention made as to why a remand was not ordered to require joinder of the insured, so as to dispose of all issues. The implications of the indemnification release were left unresolved.
A year later the Supreme Court published its decision on review of Blue Cross, holding that the subrogated insurer had a separate cause of action to enforce its subrogation rights against the tortfeasor's insurer, despite the existence of a settlement between the injured party and their adverse insurer.[viii] The Court affirmed a line of precedent, that the subrogated insurer and its insured, each owned separately a part of the claim against the tortfeasor.
Mutual Service v. American Family
Also in 1987, the Wisconsin Supreme Court published its second unanimous subrogation decision in Mutual Service v. American Family.[ix] Mutual Service sued American Family on a med-pay subrogation claim. American Family sought dismissal of the Mutual Service complaint on the basis that it had satisfied its obligations as to the subrogation claim. American Family had issued a separate check, in the full amount of the subrogation claims, to both Mutual Service and its insured. The Supreme Court disagreed with the conclusions of the lower courts that American Family, by issuing a check in the name of all the parties, satisfied its legal obligation to Mutual. American Family's act of naming Mutual as a payee did not protect Mutual's subrogated interest. Mutual was only one of three parties named as payee and the other named parties had refused to endorse the check. Therefore, Mutual Service was unable to cash the check in satisfaction of its part of the claim against American Family. Thus, the inclusion of Mutual Service as a payee on the check did not satisfy American Family's legal obligation to Mutual. For American Family to satisfy its obligation to Mutual, American Family had to either obtain a separate release from Mutual releasing Mutual's part of the claim against the tortfeasor, or issue a separate check payable to Mutual only.
Schulte v. Frazen
Six years later the court was no longer unanimous, in Schulte v. Frazen.[x] This was a medical malpractice case, involving an indemnification release similar to those used in the Blue Cross and Mutual Service cases. The malpractice insurer had settled its claims with the patient. Ignoring the indemnification release, the health insurer (Compcare) brought its own action against the malpractice insurer. Compcare argued that under Blue Cross and Mutual Service, the Rimes made-whole inquiry is irrelevant to the issue of whether the subrogated insurer may pursue a direct action against the tortfeasor. The majority disagreed, observing that Compcare's position overlooked the distinctions between Schulte and the prior cases. The parties in Blue Cross and Mutual Service had not resolved the subrogated insurers' rights in a Rimes hearing as they had in Schulte. Moreover, the Court said that it had also come to disagree with some of its own reasoning in Blue Cross and Mutual Service. Thus, it did not give Blue Cross and Mutual Service the same weight as did Compcare.[xi]
The Court extensively discussed the merits of indemnification agreements, and their impact on subrogation claims. They then disagreed with their own past analysis in Blue Cross, which had specifically disapproved of such agreements. The majority held that an injured party should have the right to settle on their own terms; that a tortfeasor would not be willing to offer the maximum amount possible to settle unless it received a complete release. The majority felt that refusing to recognize indemnification agreements could hamper plaintiffs' settlement attempts.[xii] It should be noted that the settling parties in Schulte agreed to a Rimes hearing, and despite notice, that the health insurer did not participate in that hearing. Nevertheless, in a sharply worded dissent, Justice Steinmetz complained that the majority improperly violated the doctrine of stare decisis, by rejecting the result and reasoning of Blue Cross and Mutual Service, unanimously decided only six years before.[xiii] He further observed that for tactical reasons, the plaintiffs settled their claim for less than the defendants' insurance policy limits, and Compcare was notified of a settlement far below the policy limits only after the settlement had occurred. The dissenting justice opined, that because the plaintiffs agreed to accept less than the defendants' insurance policy limits, those plaintiffs could not later complain that they had not been made whole in their settlement. Justice Steinmetz believed that Compcare should be permitted to pursue its subrogation claims against the settling defendants in accordance with the unanimous authority set forth in the Blue Cross and Mutual Service cases.[xiv]
Sorge v. National Car Rental
The court was back in unanimity two years later in Sorge v. National Car Rental.[xv] The issue presented was whether an injured party is "made whole" when the injured party receives compensation in a settlement agreement covering all of their losses, less the amount corresponding to their contributory negligence. The parties had stipulated that the settlement agreement compensated Sorge for all of her losses, including her medical expenses, less the amount corresponding to her contributory negligence. In other words, the parties had agreed that Sorge received the same amount from the settlement that she would have received from a trial in which the jury awarded her damages, and the judge then reduced the award pursuant to the law to account for contributory negligence.[xvi] The settlement was a complete payment of the debt compensating Sorge for all of the damages that she was legally entitled to recover. By her own admission, Sorge was contributorily negligent, so she had no right to recover any more than her total damages, reduced by her own contributory negligence. Sorge’s position was that the subrogated insurers could not recover any portion of their payments because the settlement did not make her whole; that negligence was not to be factored in the equation. Were the Court to have followed Sorge's reasoning, a contributorily negligent plaintiff would arguably never be made whole. The Court held that the Sorge’s position created an improper incentive for injured parties to admit to some contributory negligence in all settlement agreements, whether or not they were negligent. The Court held that negligence was to be factored into the wholeness test, so that a plaintiff was made whole after discounting for contributory negligence. A settling plaintiff was not to receive more than they were legally entitled to receive, after factoring-in contributory negligence.[xvii]
The Wisconsin Academy of Trial Lawyers (WATL) had filed an amicus brief on behalf of Sorge, proposing an alternative formula to resolve subrogation disputes. WATL argued that a contributorily negligent injured party could be made whole, or even more than whole, if the combination of the injured party’s settlement and the subrogated health insurers' payments were greater than the “made whole” amount. In this formula, the subrogated insurer would get the “left-overs”, after adding together the value of plaintiff’s claims, plus the subrogated carrier’s payments, and then subtracting that figure from the gross or pure value of all claims. Negligence was irrelevant in WATL’s proposed equation. WATL suggested that the subrogated insurers would be entitled to recover only that portion of the injured party's recovery that is beyond the injured party’s total losses, regardless of the injured party’s negligence. The Court rejected the WATL argument, noting that it failed to overcome the inequities to subrogated insures, common to both the Sorge and WATL positions.[xviii]
Ives v. Coopertools
While Sorge was being considered, an unusual action was pending in Oneida County. Michael Ives had fallen from a tree stand, suffering severe injuries. He then brought a products liability action against the manufacturer of the tree stand. The parties settled those claims before trial, stipulating that the plaintiff received in his settlement only a bit over 17% of his total damages. There were serious problems with the plaintiff’s case, involving plaintiff’s liability, as well as questionable successor corporate liability of the tree stand manufacturer. On the basis of the stipulation, the Circuit Court decided that the health insurer was not entitled to subrogation. The Circuit Court reasoned that the discounted settlement did not pay the plaintiff for his entire actual loss, and that the equities of the case did not favor the subrogated insurer. The Circuit Court made no findings as to negligence, in effect ignoring the Sorge formula for resolving wholeness disputes.[xix] The subrogated insurer appealed.[xx]
The Court of Appeals recited additional material facts. It should be noted that by the time Ives was considered on appeal, the Supreme Court had rendered its decision in Sorge. The stipulation and statements at the Rimes hearing indicated three types of liability issues for which the settling parties discounted the settlement: contributory negligence, uncertain successor corporate liability and the possibility that the fall was a pure accident. Of these three issues, the Court noted, Sorge addressed only whether a settlement, discounted because of contributory negligence, made a party whole.[xxi] The subrogated insurer advocated that if the plaintiff received 17% of his claims, for whatever discounted reasons, so also should they. The Court of Appeals declined to consider discount factors other than the plaintiff’s liability, stating that these "neutral factors" are unrelated to plaintiffs' fault, and unnecessary to a resolution of a fair distribution of settlement proceeds. The Court of Appeals then remanded the case to the trial court with instructions to exclude factors other than the insured's own negligence from the Rimes determination. A hearing was ordered to determinate plaintiff’s contributory negligence, as required by Sorge. The Court also concluded that the statutory ban on negligence claims, where the plaintiff is more than fifty percent at fault, had no application to the resolution of a subrogation issue at a Rimes hearing.[xxii] In essence, the Court instructed the trial court to make a finding as to the percentage of plaintiffs negligence; that the plaintiff would be made whole if he was more than 83% negligent, having settled for 17% of his total damages. The subrogated insurer would then have priority to any settlement proceeds representing any recovery greater than the amount of the plaintiffs total damages, discounted for the percentage of plaintiffs contributory negligence, up to the amount of benefits paid.[xxiii]
Ives was then appealed to our Supreme Court.[xxiv] A very odd situation arose. Justice Bradley recused herself, so the remaining six justices had to decide the case. These six could not come to a majority decision. The participating justices were all in agreement that the court of appeals decision was wrong, thus by default, affirming the order of the circuit court. The Oneida County decision, made before and contrary to the terms of Sorge, thus became the law of the case. The Supreme Court noted the anomaly, that in instances of a tie vote, the circuit court's decision is allowed to stand. The courts division on reasoning meant that the analyses of the two concurrences had no precedential value.[xxv] We thus have forty pages of broadly divergent and somewhat strident concurrences, having no precedential. In a way, Ives is a “case about nothing”. Yet, it is more than that, since we observe the Court’s struggle with polar views on what “wholeness” might mean. Reading the two concurrences is perhaps akin to reading the diametrically opposed amicus briefs of WATL (the Geske concurrence), and the Wisconsin Health Insurers (the Steinmetz concurrence).
The health insurers asserted that the plaintiff was made whole in his settlement because the 17% recovered represented “full value” for the plaintiff’s claims, in view of all the discount factors applicable to the plaintiff’s case. Justice Geske opined that the Court was not called upon by the parties to interpret the meaning of "full value" as used in their stipulation. These three concurring justices read the terms of trial counsels stipulation to recognize that the plaintiffs and settling defendants decided to settle all of the plaintiffs' claims for damages arising from this accident, rather than assume the risks facing each of them at a trial.[xxvi] One wonders why the “full value” issue was not addressed. Does not the meaning of the term “full value” go to the heart of the question of what is being “made whole”? Is not “full value”, what a plaintiff would be legally entitled to received, based upon the unanimous teaching of Sorge, just two years before?
Justice Geske did not think so, observing that only where an injured party has received an award by judgment or otherwise that pays for all of his or her elements of damages, including those for which the injured person has already received from their health insurer, is there a right to subrogation.[xxvii] The Justice noted that settlement situations should be viewed differently than what might occur at a trial. In her view, a subrogated insurer should not recover unless the plaintiff is made whole for all their damages, regardless of contributory negligence or any other factor which practically reduced the value of the plaintiff’s case. Justice Geske’s reasoning was not consistent with the unanimous decision in Sorge, just two years prior. Justice Geske, speaking as well for Justices Abrahamson and Bablitch, stated: “We now are of the opinion that our conclusion in Sorge was erroneous.”[xxviii] She then made a surprising statement concerning the above referenced note on the WATL position stated in Sorge: “Both Justice Steinmetz' concurrence and the opinion in Sorge misinterpret WATL's position”[xxix] Clearly sympathetic to the WATL position advanced in the appeal, Justice Geske then quoted liberally from the briefs of both the Ives and WATL lawyers. This concurrence justified it’s “about-face” from the Sorge majority, by stating that the Sorge court had confused and insufficient facts. Justice Geske explained that “Sorge was a "set-up" case.”[xxx]
Justice Steinmetz wrote a separate concurrence, joined by Justices Crooks and Wilcox. These three Justices criticized the Geske concurrence for rejecting the Sorge holding “now plainly ignored”. [xxxi] The Steinmetz concurrence, in contrast, affirmed that all a person is ever legally entitled to receive is his or her total damages, less a deduction for contributory negligence. Justice Steinmetz then stated: “Of what value is precedent when a unanimous holding can be overruled two years later due to a change in the minds of members of this court? …Justice Geske's concurring opinion in this case contributes to the charge that there is no certainty in the law, because the law can change with the whims of the majority”. [xxxii] Justice Steinmetz, for entirely different reasons, would have reversed the court of appeals, with instructions that the trial court apply a pro-rata formula to the Ives settlement. In his view, full or gross damages should be the heart of the equation; that by accepting the settlement, which included medical expenses, the plaintiffs were then compelled to reimburse their health insurer its pro rata share of the settlement recovery.[xxxiii]
Justice Steinmetz also predicted that adoption of the Geske view by the full Court could result in the destruction of most subrogation claims, because under the Geske approach, a plaintiff would rarely be made whole. A plaintiff would likely never recover in excess of their total losses, all factors are considered. The Justice predicted that plaintiff’s lawyers would game the system by complaining that their clients were never made whole in all cases.[xxxiv] Surprisingly, Justice Steinmetz made no reference to the Lewandowski case in his analysis, a case that underpinned the Rimes procedural formula. The rule of Lewandowski, adopted in Rimes, required that negligence be factored in the wholeness formula; that the definition of wholeness is what a plaintiff would otherwise be legally entitled to receive.[xxxv] The practical effect of tie divided Ives “non-decision”, is interesting reading, but a case with no precedential value. Ives has engendered continuous debate and confusion in these intervening ten years as to what the law of Rimes means today.
Muller v. Society Insurance and Paulson v. Allstate
We now have some indications that the Geske view in Ives, sometimes termed the “net made whole rule” by its WATL advocates, has problems in practical application, for those reasons noted by Justice Steinmetz ten years ago. This past February, twenty five years after Rimes, the court of appeals (District III) decided Muller v. Society Insurance.[xxxvi] Perhaps Muller gets us back on track as to what the wholeness rule is today, despite the confusion wrought by Ives.
Muller, like the Garrity case underpinning the wholeness rule, involved a fire loss. During a remodeling project, a fire destroyed the Muller's sporting goods store. The Mullers sued an electrical contractor to recover underinsured losses from the fire. The Mullers named Society Insurance as a party defendant. Society had paid claims totaling $407,378.88, on a fire policy, and then claimed subrogation against an electrical contractor and its insurer. The contractor was insured on a million dollar liability policy. All the parties attended a first mediation, at which Society and the electrical contractor’s liability insurer reached a tentative settlement of Society's subrogation claim for $190,000, pending resolution of the Mullers' claims against the contractor. The Mullers did not resolve their claims at this first mediation. At a second mediation, the Mullers settled their claims against the contractor for $120,000. However, they claimed additional losses not covered by that settlement. The Mullers maintained that they had a right to recover these additional losses from Society’s subrogation settlement. They asserted a right to a hearing on whether they had been made whole by their settlement.[xxxvii] The Mullers had compromised their claims, leaving limits on the table. They wanted their subrogated insurer to make-up the difference between the amount of their voluntary settlement, and their perceived “wholeness amount”.
The trial court concluded that, to the extent the Mullers' payments from Society and their settlement combined did not make them whole, the Mullers were entitled to recover the difference from Society's settlement. This is exactly what a trial judge might reasonably order, following the Geske approach, as espoused in Ives. A third mediation had been conducted to arrive at a gross value figure for the Muller’s claims. Mullers and Society agreed, after all payments, that the Mullers' net loss from the fire was $59,725.60. Having ruled that the Mullers could recover this amount from Society's settlement, the trial court entered judgment in favor of the Mullers and against Society on the $59,725.60 shortfall.
Both parties appealed the circuit court's judgment. Society argued that the trial court erred in holding Society must surrender a portion of its settlement to the Mullers. Society maintained that, because the plaintiffs voluntarily settled for less money than would have made them whole, the Mullers could not later complain they were shorted in their settlement. The Muller’s left the mediation table, walking away from adverse policy limits well in excess of their claims, The Mullers also appealed the amount the trial court award, arguing that they were entitled to the entire amount of Society's subrogation settlement, because Society had no subrogation claim until the Mullers were made whole.[xxxviii] The Mullers wanted Society’s entire $190,000.00 subrogation settlement, even though their “net loss” after all payments was $59,725.60.
The Appeals Court first observed that in both the Garrity and Rimes, the Courts knew from the record that the funds available were insufficient to satisfy the damages of the injured party, to make them whole. The Rimes and Garrity Courts therefore refused, in equity, to allow the subrogated insurer to take funds from the tortfeasor that would, in the absence of subrogation, have gone toward the satisfaction of the insured's damages. Relying on the Supreme Courts 2003 holding in Paulson v. Allstate, the Muller Court reflected that an insured could not recover the difference between the subrogated insurer's settlement with the tortfeasor, and their actual damages.[xxxix] In Paulson the Supreme Court had rejected the insured's argument that the made whole doctrine applied to a situation where the insured claimed to not have been made whole, in circumstances where the subrogated insurer settled first. In reaching that conclusion, the Court focused on the availability of sufficient funds to cover all losses, namely the policy limits.[xl] If there is no doubt that there are enough funds to cover the claimed losses of both the insured and the subrogated insurer, there should be no issue regarding the right of subrogation.
Society also argued that the trial court erred in awarding the Mullers $59,725.60 of Society's subrogation settlement because the Mullers settled first, there were more than enough funds to cover all claims, and the Mullers did not provide an indemnification release against Society's claims. The Mullers countered, arguing that the court correctly awarded them Society’s $59,725.60, because the funds available to settle their claims were limited, thereby preventing them from being made whole. In reality, the Mullers settlement funds were limited only by them. The settlement they received was limited, because what they agreed to accept in settlement, was less that the money available. Borrowing nearly the exact words of Justice Geske in Ives, the Mullers contended that the amount a plaintiff has available to recover is limited to how much a defendant is willing to pay. Here the court saw the essential flaw in the Mullers argument, noting that, other than a broad assertion of equity, the Mullers did not provide any authority for their proposition that a limited fund is created by what a defendant is willing to pay.[xli] The one million dollar policy limit was far more than adequate to cover all claims. The prior cases, in which the funds were limited, involved funds clearly insufficient to compensate all the damage claims. While the court did not hold policy limits are per se the measure of whether a fund is limited, in this case those limits would have clearly covered all damages. Unlike Schulte, the Mullers did not agree to indemnify the liable defendant from Society’s claims.[xlii]
The Court held that where there are sufficient funds to cover all the losses, where there is no indemnification agreement, and where there is an opportunity to recover from those funds, there is no limited fund. Through their settlement, the Mullers made a conscious choice to accept less than their losses. However, that choice could not plausibly be tied to any limited funds. The Mullers would not have been able be able to recover any more in their settlement had Society chosen not to pursue its subrogation claim. The Mullers were not entitled to more money than the amount of their settlement simply because Society pursued its subrogation claims.[xliii] For these same reasons, the Court rejected the Mullers cross-appeal, that they were entitled to Society’s full $190,000 subrogation settlement. Society was entitled to pursue its own subrogation claim and to settle it for an amount it deemed sufficient where there were adequate funds to cover both the Mullers and Society’s claims.[xliv] [xlv]
The “Rimes Rule” has its origins in the Garrity fire loss case. It is, therefore, appropriate that we find clarification as to what Rimes and Garrity mean today in Muller, also a fire loss case. Perhaps it is simpler to apply broad principle of subrogation in casualty cases, unencumbered by some of the additional complexities presented in a personal injury case. What the Court decided in Muller makes sense, regardless of technical distinctions. The ultimate inquiry in subrogation is “what’s fair?” Fairness is, of course, a matter of perspective and perception. The Mullers settled first with no indemnification release. It is unfortunate that the Muller Court had to rely on these technical distinctions to reach a fair result, thereby distinguishing the odd reasoning in Schulte. Perhaps Muller better reflects the realities of common case settlements, than the aberrant fact situations presented in the cases that have so divided our court-Schulte and Ives.
This is not the end of the story, since the Supreme Court has not yet weighed-in on Muller. The author has been advised that WATL is supporting plaintiffs counsel in a petition for review of Muller by the Supreme Court. We can anticipate yet another fascinating chapter in the evolution of the “Rimes Rule”.[xlvi]
[i] Rimes v. State Farm, 106 Wis. 2d 263, 316 N.W.2d 348 (1982).
[ii] Id., 106 Wis. 2d at 272.
[iii] Garrity v. Rural Mutual Ins. Co., 77 Wis. 2d 537, 253 N.W.2d 512 (1977).
[iv] Lewandowski v. Continental Casualty Co., 88 Wis. 2d 271, 276 N.W.2d 284 (1979).
[v] Rimes, 106 Wis. 2d 279.
[vi] Blue Cross v. Firemen’s Fund, 132 Wis. 2d 62, 390 N.W.2d 79 (1986).
[vii] Id., 132 Wis. 2d at 66, n.3.
[viii] Blue Cross v. Firemen’s Fund, 140 Wis. 2d 544, 411 N.W.2d 133 (1987).
[ix] Mutual Service v. American Family, 140 Wis. 2d 555, 410 N.W.2d 582 (1987).
[x] Schulte v. Frazen, 176 Wis. 2d 622, 500 N.W.2d 305 (1992). Schulte was a 5-2 decision.
[xi] Id., 176 Wis. 2d at 631.
[xii] Id. at 634.
[xiv].Id. at 638-39.
[xv] Sorge v. National Car Rental, 182 Wis. 2d 52, 512 N.W.2d 505 (1994).
[xvi] Id. at 55-56.
[xvii] Id. at 60.
[xviii] Id. at 60, n.5.
[xix] Ives v. Coopertools, 197 Wis. 2d 937, 541 N.W.2d 247 (Ct. App. 1995).
[xxi] Id. at 943.
[xxii] Id. at 945.
[xxiii] Id. at 947.
[xxiv] Ives v. Coopertools, 208 Wis. 2d 55, 559 N.W.2d 571 (1997).
[xxv] Id. at 57-58.
[xxvi] Id.at 64, n.9.
[xxvii] Id. at 70.
[xxviii] Id. at 74.
[xxix] Id. at 74, n.13.
[xxx] Id. at 77, n.17.
[xxxi] Id. at 88.
[xxxii] Id. at 88-89.
[xxxiii] Id. at 94.
[xxxiv] Id. at 92.
[xxxv] Lewandowski, Supra, at note 4.
[xxxvi] Muller v. Society Insurance, 2006 AP 976 (Feb 20, 2007. Recommended for publication, as of this writing.)
[xxxvii] Id., 2006 AP 976-977.
[xxxviii] Id., 2007 AP 979-980
[xxxix] Paulson v. Allstate Insurance Co., 2003 WI 99, 263 Wis. 2d 520, 665 N.W. 2d 744.
[xli] Id., Muller v. Society Insurance, 2006 AP 976, ¶15
[xlii] Id. at ¶17
[xliii] Id. at ¶18
[xliv] Id. at ¶19
[xlv] Joe Thrasher and James Pelish represented Society in Muller. The author thanks Mr. Pelish for his insightful observations on the case, but hastens to add that the conclusions drawn here on Muller are merely the opinions of this writer.
[xlvi] The instant discussion is confined to subrogation issues in non-ERISA cases. Most of the above discussion is irrelevant in cases involving ERISA subrogation.